It is time to rethink how the United States enforces the right of association in the workplace. The proliferation of political associational rights, intimate association rights, and expressive association rights in the constitutional sphere over the last thirty years has made the scope of this fundamental civil liberty confusing and hard to enforce. Outside of the constitutional framework, which generally applies only to public employees, low union density and the lack of common law associational claims have made private-sector employees' associational rights vulnerable. The unfortunate consequence may be that American workers currently enjoy less associational freedoms than almost any other industrialized nation in the world.

The proposed federal Freedom of Association in the Workplace Act (FAWA) would not supplant existing constitutional and statutory protections at the federal and state level, but would provide a complementary and comprehensive statutory framework for all associational rights claims in the workplace. Such a law would provide additional protection for employee associational claims both procedurally and substantively, while simultaneously making consideration of the more difficult constitutional issues by courts unnecessary. If appropriately drafted and implemented, such a law would provide a uniform and understandable basis for reviewing workplace association claims going forward.